Law and Philosophy Commons^™

What Lawyers Can And Should Do About Mendacity In Politics, Heidi Li Feldman

Duquesne Law Review

No abstract provided.

Lies, Deceit, And Bullshit In Law, Lawrence M. Solan

Duquesne Law Review

No abstract provided.

Lawyers Serving Gods, Visible And Invisible, Jonathan R. Cohen

UF Law Faculty Publications

A critique of the American legal profession can be framed through the metaphor of idolatry, specifically the proclivity of lawyers to serve visible rather than invisible interests in their work. This proclivity has ramifications ranging from broad matters like lawyers' responses to deeply embedded social injustices to specific matters such as the excessive focus on pecuniary interests in ordinary legal representation and the high level of dissatisfaction that many lawyers experience in their careers. Using as a lens biblical teaching concerning idolatry, this article begins by describing "visible" as opposed to "invisible" interests in the context of legal practice. It …

The Language Of Neutrality In Supreme Court Confirmation Hearings, Carolyn Shapiro

Dickinson Law Review (2017-Present)

At Justice Neil Gorsuch’s confirmation hearing, then-Judge Gorsuch repeatedly insisted that judging involves no more than examining the legal materials—like statutes and precedents— and applying them to the facts of the case. There is, he emphasized, no room for a Justice’s “personal views,” and he refused even to state his agreement (or disagreement) with such iconic cases as Loving v. Virginia and Griswold v. Connecticut. Instead, then Judge Gorsuch reiterated only that they were precedents of the Court and thus entitled to respect. Frustrating as his answers may have been to some senators, however, they differed from answers given …

In (Partial) Praise Of (Some) Compromise: Comments On Tebbe, Chad Flanders

All Faculty Scholarship

I want to begin by sketching a point of view that, at best, makes only an implicit showing in Tebbe's persuasive, thoughtful, and challenging book. That viewpoint looks something like this:2 religion is unique, not just in substance but also in form. Start with substance: religion is a way of looking at the world as not exhausted by secular values or concerns; for money, prestige, or for "utility" broadly construed, or even exhausted by morality. Religion asks, repeatedly of those who believe in it, to do seemingly impossible things. It counts on miracles. Religion sees the world and our lives, …

Dorothy Moser Medlin Papers - Accession 1049, Dorothy Moser Medlin

Manuscript Collection

(The Dorothy Moser Medlin Papers are currently in processing.)

This collection contains most of the records of Dorothy Medlin’s work and correspondence and also includes reference materials, notes, microfilm, photographic negatives related both to her professional and personal life. Additions include a FLES Handbook, co-authored by Dorothy Medlin and a decorative mirror belonging to Dorothy Medlin.

Major series in this collection include: some original 18th century writings and ephemera and primary source material of André Morellet, extensive collection of secondary material on André Morellet's writings and translations, Winthrop related files, literary manuscripts and notes by Dorothy Medlin (1966-2011), copies …

Counter-Critical Theory: An Intervention In Contemporary Critical Thought And Practice, Bernard E. Harcourt

Faculty Scholarship

Walter Benjamin and Bertolt Brecht's short-lived project for a critical theory journal, Krise und Kritik, foundered in 1931 on the shoals of positivism. Since then, a series of anti-foundational challenges to traditional critical theory has fragmented the landscape of critical theory and, especially, critical praxis, leaving us disarmed today, in these unprecedented times. This essay offers a way forward by means of what it calls “counter-critical theory”: a critical method that indexes the original impulse of critical theory, but liberates it from its foundation in order to allow for a more open-ended and permanent re-examination of how power circulates …

Objective And Subjective Tests In The Law, R. George Wright

The University of New Hampshire Law Review

Across many subject areas, the law commonly attempts to distinguish between objective and subjective tests, and to assess the merits of objective as opposed to subjective legal tests. This Article argues that all such efforts are fundamentally incoherent and ultimately futile in practice. As demonstrated below, what the law takes to be objective in the relevant sense is essentially constituted by what the law takes to be subjective, and vice versa. Judicial preoccupation with objective and subjective tests thus does no more than distract from more meaningful concerns. Judicial attention should be directed away from this hopeless distinction, and instead …

Alexis De Tocqueville And American Constitutional Law: On Democracy, The Majority Will, Individual Rights, Federalism, Religion, Civic Associations And Originalist Constitutional Theory, Philip C. Kissam

Maine Law Review

Count Alexis de Tocqueville's Democracy in America has been said to be "at once the best book ever written on democracy and the best book ever written on America. " This praise should perhaps be tempered by consideration of Tocqueville' s purposes and the historical circumstances within which he worked and understood both democracy and America. Yet Tocqueville's insights into American democracy as of the 1830s undoubtedly constitute a rich source of constitutional thought-either as support for particular constitutional principles or as constitutional ideas that should be contested. In a recent notable instance, John McGinnis has argued that Tocqueville's ideas …

The Fragility Of Constitutional Democracy, Yasmin Dawood

Maryland Law Review

Is the survival of constitutional democracy in America at serious risk? Given the actions of the Trump administration, and given the decline of democracy and concomitant rise of authoritarianism the world over, there is genuine cause for alarm. In light of these fears, it is worth remembering that the authors of The Federalist Papers were notably pessimistic about the survival chances of republican government. To what extent have their constitutional design innovations contributed to present woes, and conversely, to what extent will the Constitution ensure the survival of democracy? This Essay argues that while the design of the Constitution is …

Development And Nation Building: A Framework For Policy-Oriented Inquiry, W. Michael Reisman

Maine Law Review

We use the term “development” to refer to decision processes and decision outcomes which have been designed to induce the shaping and sharing of all values within and among territorial communities in ways and with consequences approximating the goal values of a world order of human dignity. The component of purposive direction toward these postulated goal values distinguishes development from social change more generally. Social change, it will be noted, is an ineluctable feature of social process, for all actors are constantly seeking to change parts of the social process with the aim of making it discriminate in their favor. …

Laudato Si’: Engaging Islamic Tradition And Implications For Legal Thought, Russell Powell

Seattle University Law Review

This Essay considers the 2015 papal encyclical Laudato si’s engagement with Islamic religious and legal traditions in order to identify shared ethical and jurisprudential commitments and their broader implications for law. By 2025, Muslims will constitute 30% of the population of the world, while Catholics will likely be between 15% and 20%. The history of interreligious conflict is long and enduring. In many cases, legal structures related to security and immigration have exacerbated these tensions, prompting uncertainty and instability.5 Laudato si’ is a strategic document, intended to address climate change, increasing economic inequity, and interreligious conflict by opening a space …

Where Morality And The Law Coincide: How Legal Obligations Of Bystanders May Be Informed By The Social Teachings Of Pope Francis, Amelia J. Uelmen

Seattle University Law Review

Since the beginning of his pontificate, Pope Francis has offered to the world powerful signs of how we should aspire to treat each other as human beings, as brothers and sisters in the one human family. He has communicated his message and his teachings in myriad ways: through symbolic gestures; his presence and words at gatherings in our world’s most troubled places; brief messages, homilies and meditations; and official documents that continue the application of the principles of Catholic social teaching to contemporary social questions. What might these prophetic signs and statements mean for the dialogue between Catholic social thought …

A Cosmopolitan Church Confronts Right-Wing Populism, Vincent Rougeau

Seattle University Law Review

Are all human beings of equal moral worth? If so, does this proposition generate moral obligations to others that transcend national and cultural boundaries? Cosmopolitans would answer yes to each of these questions, as would Pope Francis and Catholic Social Teaching (CST). Given our interconnected economic system, a global perspective on justice is not only pragmatic but also morally essential. In recent years, however, what had been an emerging consensus centered on a cosmopolitan view of the reciprocal responsibilities of nations has been stifled by a rising tide of nationalism and right-wing populism. As a right-wing populist leader of a …

Social Justice And The American Law School Today: Since We Are Made For Love, Michael Kaufman

Seattle University Law Review

This Article is intended to facilitate that new dialogue by finding a series of profound provocations in the Pope’s teachings. First, the Pope provokes us to consider whether our existing education and economic systems are based on an incomplete understanding of human nature.5 The first section contends that the understanding that human beings are by nature competitive and consumptive wealth maximizers is not only contrary to the Pope’s teachings but also contrary to the latest research in the fields of neuroscience, neuro-psychology, cognitive psychology, educational psychology, economics, and behavioral economics. Second, the Pope provokes us to consider whether our existing …

A Critique Of Pope Francis’S Laudato Si’, Nicholas Capaldi

Seattle University Law Review

This is a critique of Pope Francis’s encyclical Laudato si’. The author summarizes and examines Pope Francis’s description of the problem, analysis of the roots of the problem, and proposed solution of the problem within the context of the Roman Catholic tradition. The author concludes that the encyclical abandons rigorous argument, as it lists complaints without offering substantive alternatives.

Mercy Versus Fear, Or Where The Law On Migration Stands, Gilbert Paul Carrasco, Iryna Zaverukha

Seattle University Law Review

The theme of this Article contrasts the perspective of Papa Francisco on the subject of migration, juxtaposing his blueprint of mercy as the point of departure, with the oppositional resistance, which is based on various dimensions of fear. This perspective will be contextualized within the framework of both American immigration law and within the parameters of international human rights and transnational migration. Part I of this Article will consider the paradigm of mercy and fear in light of the various provisions of federal American immigration law in their historical context. It will recount many of the restrictive and nativist episodes …

The Teachings Of Pope Francis Symposium: Toward A Common Good For Our Common Home, Steven W. Bender

Seattle University Law Review

Prompted by the teachings of Pope Francis conveyed through such writings as the Evangelii gaudium and Laudato si’, the symposium—titled The Teachings of Pope Francis: Towards a Vision of Social Justice and Sustainable Capitalism?—brought an impressive and diverse array of interdisciplinary scholars to Seattle University School of Law in February 2017. Speakers included economists, law professors, and theologians with a wide array of expertise on daunting policy issues facing the Global South and North. Fittingly, a Jesuit law school with a diverse faculty hosted the symposium centering, critiquing, and expanding the teachings of the first Jesuit Pope. Many of our …

Social Justice And Capitalism: An Assessment Of The Teachings Of Pope Francis From A Law And Macroeconomics Perspective, Steven A. Ramirez

Seattle University Law Review

The first part of this Article will synthesize the key teachings of Pope Francis from his most important statements on economic structures and social justice and situate these teachings within contemporary economic realities and traditional social justice teachings. Part II of this Article will demonstrate that the Pope’s teachings on social justice fundamentally reflect the best learning from economists on how to sustain economic growth. Part III of this Article will show that nations that undertake policies to pursue the fundamental tenets of the Pope’s teachings (such as minimizing childhood poverty) also perform the best in achieving high human development …

Looking At Justice Through A Lens Of Healing And Reconnection, Annalise Buth, Lynn Cohn

Northwestern Journal of Law & Social Policy

No abstract provided.

Panel Discussion: Expanding Our Conception Of Justice

Northwestern Journal of Law & Social Policy

No abstract provided.

The Fault In Legal Ethics, Anthony T. Kronman

Dickinson Law Review (2017-Present)

No abstract provided.

“The Lost Lawyer” Regained: The Abiding Values Of The Legal Profession, Robert Maccrate

Dickinson Law Review (2017-Present)

No abstract provided.

Today's Porn: Not A Constitutional Right; Not A Human Right, Patrick Trueman

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

It Can't Wait: Exposing The Connections Between Forms Of Sexual Exploitation, Dawn Hawkins

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

Does Hard Incompatibilism Really Abolish ‘Right’ And ‘Wrong’? Some Thoughts In Response To Larry Alexander, John A. Humbach Mr.

Elisabeth Haub School of Law Faculty Publications

In a challenge to recent writings of Derk Pereboom and Gregg Caruso,3 Larry Alexander makes the following claim: If one accepts the Pereboom-Caruso “hard incompatibilist” view of choice, which regards blame and retributive punishment as morally unjustified because free will is an illusion, then “normativity completely disappears.” In making this claim, Professor Alexander appears to hold that the moral distinction between right and wrong conduct (“normativity”) cannot effectively exist unless those who do wrong “deserve” to receive blame and punishment in response to their misbehavior. This is not, however, necessarily so.

Hegelian Dialectical Analysis Of U.S. Voting Laws, Charles Edward Andrew Lincoln Iv

Student Scholarship

This Comment uses the dialectical paradigm of German philosopher Georg Wilhelm Friedrich Hegel (1770-1833) to analyze the progression of United States voting laws since the colonial foundations of a participatory democratic process in this country. This analysis can be used to interpret past progression of voting rights in the United States as well as a provoking way to predict future trends in United States voting rights - as an ongoing "progressive" political process or rhetorical method of erasing categories or classifications and eliminating distinctions amongst persons.

Popular Culture And Legal Pluralism: Narrative As Law. By Wendy A. Adams [Book Review], Dana Neacsu

Law Faculty Publications

Wendy Adams’ book is published in Routledge's “Law, Justice, and Power” series, edited by Austin Sarat. Like Sarat, Adams, who teaches law at McGill University, belongs to the school of "cultural studies of law". Thus, her writing is refreshingly cosmopolitan and interdisciplinary. Her project is to build a “legal narrative,” which is a framework for popular culture as law, where illegal acts could easily become re-imagined in an alternative legality. She argues that “legal texts originating with the state may well be of less significance in creating legal meaning in our lives than the representations of law in popular culture.”

A Structural Etiology Of The U.S. Constitution, Charles Edward Andrew Lincoln Iv

Student Scholarship

This article offers an interpretation of the problems addressed by and the eventual purpose of the United States government. Simultaneously, it seeks to analyze and explain the continued three-part structure of the United States federal government as outlined in the Constitution. Subsequently I define the three parts of the federal government—judiciary, executive, and legislative—as explained through the lens of the Platonic paradigm of (logos = word = law), (thymos = external driving spirit = executive), and (eros = general welfare = legislative) extrapolated from Plato’s dialogues.

First, the article establishes Plato’s theory of the three-part Platonic soul as a major …

Am I A “Licensed Liar”?: An Exploration Into The Ethic Of Honesty In Lawyering . . . And A Reply Of “No!” To The Stranger In The La Fiesta Lounge, Josiah M. Daniel Iii

St. Mary's Journal on Legal Malpractice & Ethics

After hearing for the first time the lawyer-disparaging phrase, “licensed liar,” the author investigated its significance. This article presents the question of those two words’ meaning and explains how the author reached the conclusion that, as applied to attorneys, the phrase is an unmerited epithet. The phrase is known and utilized in nonlegal texts in fields such as fiction, poetry, literary criticism, and journalism, but the two words are absent from legal texts. The author’s discovery of the phrase in various criticisms of lawyers in other publications illuminates and confirms that the phrase constitutes the pejorative allegation that an attorney …